61988J0133

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Officials - Applications - Prior complaint through official channels - Uniformity of subject-matter and grounds - Submissions and arguments not included in the complaint but closely linked to it - Whether admissible

( Staff Regulations, Arts 90 and 91 )

Under the scheme of the Staff Regulations, the object of the pre-litigation procedure, which is commenced by the lodging of an official complaint, is to permit an amicable settlement of the differences which have arisen between officials or servants of the Communities and the administration . In order that such a procedure may fulfil its purpose, it is necessary for the appointing authority to be in a position to know in sufficient detail the criticisms made by those concerned of the contested decision .

At the stage of proceedings before the Court, an official may not submit conclusions having a subject-matter different from those raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint . The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it . In any event, at the pre-litigation stage the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind .

In Case 133/88

Casto Del Amo Martinez, an official of the European Parliament, residing at 22 rue Michel Rodange, L-5252 Sandweiler ( Luxembourg ), represented by Blanche Moutrier, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 16 avenue de la Porte-Neuve,

applicant,

v

European Parliament, represented by Manfred Peter, Head of Division in the Legal Department, with an address for service in Luxembourg at its Secretariat, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the selection board for Internal Competition No LA/104 ( Principal Translators of Spanish and Portuguese ) not to include the applicant in the list of suitable candidates drawn up following the tests,

THE COURT ( First Chamber )

composed of : R . Joliet, President of Chamber, Sir Gordon Slynn and G . C . Rodríguez Iglesias, Judges,

Advocate General : G . Tesauro

Registrar : D . Louterman, Administrator

having regard to the Report for the Hearing and further to the hearing on 26 January 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 16 February 1989,

gives the following

Judgment

1 By an application lodged at the Court Registry on 10 May 1988, Casto del Amo Martinez, an official in Grade LA 7 at the European Parliament, brought an action for the annulment of the decision of the selection board for Competition No LA/104 not to include him in the list of suitable candidates drawn up following the tests in that competition .

2 Competition No LA/104 was an internal competition on the basis of qualifications and tests, the purpose of which was to recruit principal translators of Spanish and Portuguese respectively .

3 The notice of competition provided that the recruitment procedure was to be in two stages . At the first stage, the selection board was to assess and mark the candidates' qualifications . In order to be admitted to the tests candidates had to obtain at least six-tenths of the maximum points awarded for qualifications . At the second stage, candidates were required to take four written tests . The marks awarded for those tests could not, in themselves, eliminate candidates . Nevertheless, the competition notice provided that candidates had to obtain at least six-tenths of the total points awarded for qualifications and the tests in order to be entered on the list of suitable candidates .

4 The applicant met the requirements regarding qualifications and was therefore admitted to the tests . Since he did not obtain the minimum of six-tenths of the total points awarded for qualifications and the tests, the selection board did not include him on the list of suitable candidates .

5 In his complaint of 27 October 1987 the applicant challenged the decision of the selection board on three counts . First, he claimed that the tests were corrected by members of the selection board who were not sufficiently qualified; secondly, that his test papers had not been correctly assessed in relation to those of the other candidates; and lastly, that the selection board had failed to observe the rules regarding the secrecy of its proceedings . The applicant concluded his complaint with a general request to the appointing authority to annul the proceedings of the selection board inasmuch as it had infringed the provisions of the Staff Regulations on the organization of competitions, and to consider "whether the selection board had acted properly in (( his )) regard ". That complaint was rejected on 11 February 1988, and the applicant then brought this action before the Court . In support of his application he makes a single submission, alleging that the assessment of his qualifications by the selection board was incorrect .

6 The European Parliament argues that the application is inadmissible on the ground that the submission relied on by the applicant in support of his application had not been put forward during the pre-litigation procedure .

7 On 15 December 1988 the Court decided to hear the parties on the question of admissibility alone, to the exclusion of the substantive issues .

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

9 It should be recalled that the Court has consistently held that the object of the pre-litigation procedure is to permit an amicable settlement of the differences which have arisen between officials or servants and the administration . In order that such a procedure may fulfil its purpose, it is necessary for the appointing authority to be in a position to know in sufficient detail the criticisms made by those concerned of the contested decision ( judgment of 1 July 1976 in Case 58/75 Sergy v Commission of the European Communities (( 1976 )) ECR 1139 ).

10 It should next be observed that an official may not submit to the Court conclusions with a subject-matter other than those raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint . The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it ( see most recently the judgment of 26 January 1989 in Case 224/87 Koutchoumoff v Commission of the European Communities (( 1989 )) ECR 99 ).

11 It should, finally, be emphasized that since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind .

12 It is in the light of those principles that consideration must be given to the admissibility of the present application .

13 In this case, the applicant has not only made no reference in his complaint through administrative channels to the allegedly incorrect assessment of his qualifications but has also failed to put forward any argument from which the defendant institution, even endeavouring to interpret the complaint with an open mind, could have inferred that he wished to plead a mistake in the assessment of his qualifications .

14 In those circumstances the application must be declared inadmissible .

Costs

15 Under Article 69(2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities .

On those grounds,

THE COURT ( First Chamber )

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 Orders the parties to bear their own costs .